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Superior Court of New Jersey, Law Division, Burlington County
November 19, 1997, Decided ; November 19, 1997, Filed
DOCKET NO. BUR-L-289-94, DOCKET NO. BUR-L-1669-96, DOCKET NO. BUR-L-3006-94, DOCKET NO. BUR-L-02093-96
[*500] [**1247] WELLS, III, A.J.S.C.
These four cases, otherwise unrelated, are before the Court on a common issue, each brought by motion returnable on successive motion days. They are all personal injury cases involving physical injury. In all four cases the defendants have requested an independent medical exam (IME) of the plaintiff. Plaintiffs, in response, while recognizing their [***2] obligations to attend such exams under Rule 4:19, seek leave to have counsel present during the exam or to have it recorded. In all four cases, Briglia, Wong, Bienkowski, and Pawelek, the defendants have filed motions to compel plaintiffs to attend without counsel and/or without recording devices. 1
In Briglia, there has developed a clash of how doctors and lawyers perceive their respective professional responsibilities--medical and legal--in the situation. The doctor chosen by Exxon will not as a matter of policy, based on his concept of the doctor-patient relationship, conduct an IME if it is attended by a third person or is recorded. It is clear legally, at least, that no patient-physician privilege arises in the case of an IME. The results of the IME are an open book to all parties. At the same time, it is plaintiff's law firm's policy to [***3] attend every IME as part of its aggressive advocacy of its client's interests. Plaintiff's counsel's office policy is no more of a basis for ruling on these motions, than is the doctor's concept of privilege. Plaintiff claims that generally such attendance can be worked out by consent and, in fact, when it [*501] has been raised, it has been successful in several unreported decisions. Clearly, in this case, if plaintiff prevails, Exxon will have to choose another examining doctor.
In the Wong case, the parties are less doctrinaire, but the motion turns on a contest over the practical difficulties of protecting the plaintiff in what has become a very sensitive area of the adversary atmosphere of these cases. Plaintiffs assert the IME is a misnomer, that the exam is clearly a defense exam and is thus inherently part and parcel of the adversary process. They claim that no just reason exists to keep counsel out or to stop the recording of it, such that conflicts as to what was actually said during the exam may be avoided.
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310 N.J. Super. 498 *; 708 A.2d 1246 **; 1997 N.J. Super. LEXIS 542 ***
ANTHONY BRIGLIA, ET UX., PLAINTIFFS, v. EXXON COMPANY, USA, ETC., ET AL., DEFENDANTS. WING KEN WONG, ET UX., PLAINTIFFS, v. DORRI L. FARLEY, AND ALBERT E. FARLEY, JR., J/S/A, DEFENDANTS. KRISTA BIENKOWSKI, PLAINTIFF, v. RICHARD BITTNER, DEFENDANT. IWONA Z. PAWELEK, ET VIR., PLAINTIFFS, v. DARIUSZ T. MAZUR, ET AL., DEFENDANTS.
Subsequent History: [***1] Approved for Publication March 3, 1998.
exam, attendance, cases, recording, recording device, third party, good cause
Civil Procedure, Discovery, Methods of Discovery, Mental & Physical Examinations, General Overview, Evidence, Types of Evidence, Demonstrative Evidence, Recordings, Governments, Courts, Court Personnel